The Shouthttp://www.granick.com/blog
Opinions on EverythingFri, 28 Jun 2013 16:21:57 +0000en-UShourly1http://wordpress.org/?v=4.0.1The Criminal NSAhttp://www.granick.com/blog/?p=766
http://www.granick.com/blog/?p=766#commentsFri, 28 Jun 2013 16:21:57 +0000http://www.granick.com/blog/?p=766My opinion piece “The Criminal NSA” co-authored with Professor Christopher Sprigman has been published in the New York Times. The op ed is about NSA spying programs Prism and the collection of all phone metadata about Americans. An excerpt:

The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

Welcome to the Granick Slate Card for the November 6, 2012 National Election. I missed the last opportunity to opine on all things voting because I didn’t have the time to do the kind of analysis I like. This year is no different, but rather than sitting out, I’ll just be terse, under the theory that one should not let the perfect be the enemy of the Done. So, without further ado, the picks.

PRESIDENT

Barack Obama: On the issues that are closest to my professional heart — government surveillance and due process – Barack Obama has been just awful. But I will be volunteering to call voters to get out the vote and I will be voting for him. I’ve come to see that this is no time for complacency, even if your support is lukewarm. Romney is a disastrous liar and the Republicans are horrific on women’s rights.

Should the California Constitution be amended to (a) temporarily increase sales and personal income tax rates; (b) guarantee certain revenue transfers to local governments; and (c) eliminate state funding of certain mandates to local governments?

If this doesn’t pass, we will have three less weeks of public school next year.

State Budget. State and Local Government — State of California(Initiative Constitutional Amendment and Statute – Majority Approval Required)

Should the state constitution and law be amended to require government performance reviews and two-year budget cycles, to prohibit the Legislature from creating certain expenditures unless offsetting revenues or spending cuts are identified, and to make changes in certain responsibilities of local government, the Legislature and the Governor?

Should unions, corporations, government contractors and state and local government employers be prohibited from using payroll-deducted funds, or in some instances their own funds, for political expenditures?

This is an effort to hobble organized labor and other left-associated forces from participating in government.

Should the definition of human trafficking be expanded, penalties for traffickers be increased, convicted sexual traffickers be required to register as sex offenders, and additional training for law enforcement officers be required?

Should the California tax code be changed to require multistate firms to pay income taxes based on a percentage of their sales in California, with roughly half of the resulting tax increase to be used to fund clean/efficient energy projects for five years?

This would incentive businesses to locate in and bring jobs to California, as currently companies locate outside the state to avoid the in-state California tax. Half of money goes to renewable energy for 5 years, expected to raise $1B/year.

To provide City College of San Francisco with funds the State cannot take away; offset budget cuts; prevent layoffs; provide an affordable, quality education for students; maintain essential courses including, but not limited to, writing, math, science, and other general education; prepare students for four-year universities; provide workforce training including, but not limited to, nursing, engineering, technology, and business; and keep college libraries, student support services, and other instructional support open and up to date; shall the San Francisco Community College District levy 79 dollars per parcel annually for eight years requiring independent audits and citizen oversight?

SAN FRANCISCO CLEAN AND SAFE NEIGHBORHOOD PARKS BOND, To improve the safety and quality of neighborhood parks across the city and waterfront open spaces, enhance water quality and clean up environmental contamination along the Bay, replace unsafe playgrounds, fix restrooms, improve access for the disabled, and ensure the seismic safety of park and recreation facilities, shall the City and County of San Francisco issue $195 million dollars in General Obligation bonds, subject to independent oversight and regular audits?

Shall the City amend its Charter to: create a Housing Trust Fund that supports affordable housing for low-income and moderate-income households; and change the affordable housing requirements imposed on some private residential developments?

This will direct SF money previously allocated to affordable housing via the state Redevelopment Agency to that same worthy purpose, with more help for middle income families and additional flexibility for developers.

Shall the City prepare a two-phase plan that evaluates how to drain the Hetch Hetchy Reservoir so that it can be restored by the National Park Service and identifies replacement water and power sources?

$8M for a study that is step one is draining Hetch Hetchy, the marvelous source of our pristine drinking water, brought to the City by gravity, without need for (polluting) electricity or filtration.

Proposition G. I don’t vote on these non-binding things, especially because they are woefully ignorant. The same theories that give us corporate personhood give us First Amendment rights for unions and NGOs. When you figure out how to parse that under our law, I’ll read your ballot measure. Until then, you are wasting trees.

Shall it be City policy that corporations should not have the same constitutional rights as human beings and should be subject to political spending limits?

SAN FRANCISCO RACES:

Sorry I didn’t do picks for School Board or Community College Board. I did some research and realized that it was hard. For School Board, I’ll be voting the Chron/Guardian overlap, which is Fewer, Wynns and Walton.

Slate Card issues before (almost) every California election and may be copied and freely shared for any non-commercial purpose, with author attribution. Derivative works need not make any attribution.

]]>http://www.granick.com/blog/?feed=rss2&p=7620Catching Uphttp://www.granick.com/blog/?p=759
http://www.granick.com/blog/?p=759#commentsTue, 24 Jul 2012 19:54:02 +0000http://www.granick.com/blog/?p=759Unfortunately, I haven’t been keeping this site up to date as I’ve been blogging on the Stanford Law School Center for Internet and Society site. To that end, here are my most recent posts:

]]>http://www.granick.com/blog/?feed=rss2&p=7590BCPO Rafflehttp://www.granick.com/blog/?p=751
http://www.granick.com/blog/?p=751#commentsMon, 23 Apr 2012 21:58:20 +0000http://www.granick.com/blog/?p=751Contact me if you want tickets for this worthy cause! BCPO Raffle 2012 Flyer
]]>http://www.granick.com/blog/?feed=rss2&p=7510Draft Bill to “Fix” CFAA Won’thttp://www.granick.com/blog/?p=749
http://www.granick.com/blog/?p=749#commentsThu, 12 Apr 2012 20:07:30 +0000http://www.granick.com/blog/?p=749The House Judiciary Committee is considering a bill (.pdf) to amend the Computer Fraud and Abuse Act, 18 USC 1030. I’ve redlined the current statute (.doc) to show how the law would look should this bill pass, and inserted comments where relevant.

I’ve heard that the bill is intended to fix what’s come to be known as “The Lori Drew Problem“: criminalizing terms of service violations. By my analysis, it does the opposite. The text could clear the way for such prosecutions while introducing new legal uncertainties, expanding the scope of the CFAA and greatly increasing penalties, without resolving the underlying problem, which is that the phrase “exceeds authorized access” — as well as the new phrase “in excess of authorization” in the bill — are subject to conflicting interpretations.

The bill also dramatically increases penalties while introducing new ambiguous language that muddies rather that clarifies the reach of this expansive law in other areas as well. For the reasons set forth in the comments to my attached redline, this legislation needs to be scrapped.

This legislative push comes just a few days following the Ninth Circuit’s opinion in United States v. Nosal. There, the Court sitting en banc reversed the panel decision and held that violations of an employer’s computer use restrictions are not penalized under the statute, because “exceeds authorized access” doesn’t mean merely violating a policy, it means obtaining data you are not allowed to see. While a very welcome decision, this creates a Circuit split with the Fifth, Seventh and Eleventh Circuits. We don’t yet know whether the government will petition for, or the Supreme Court will grant cert in Nosal. What we do know is that if Congress wants to resolve the ambiguity, the current bill will only make matters worse.

]]>http://www.granick.com/blog/?feed=rss2&p=7490Megaupload: A Lot Less Guilty Than You Thinkhttp://www.granick.com/blog/?p=739
http://www.granick.com/blog/?p=739#commentsThu, 26 Jan 2012 18:53:31 +0000http://www.granick.com/blog/?p=739The recent Department of Justice decision to indict Megaupload for copyright infringement and related offenses raises some very thorny questions from a criminal law perspective. A few preliminaries: I’m responsible for the musings below, but I thank Robert Weisberg of Stanford Law School for taking the time to talk through the issues and giving me pointers to some relevant cases. Also, an indictment contains unproven allegations, and the facts may well turn out to be different, or to imply different things in full context.

DMCA SAFE HARBOR: BELIEVE IT AND IT WILL BECOME REAL: As a matter of criminal law, the discussion of whether Megaupload did what it needed to do to qualify for the DMCA Safe Harbor misses the point. Did they register an agent? Did they have a repeat infringer policy? These are all interesting CIVIL questions. But from a criminal law perspective, the important question is did Defendants BELIEVE they were covered by the Safe Harbor? This is because criminal infringement requires a showing of willfulness. The view of the majority of Federal Courts is that “willfulness” means a desire to violate a known legal duty, not merely the will to make copies.

In other words, for criminal liability, it doesn’t really matter whether the service qualifies, so long as Defendants believed it qualified. If so, they were not intentionally violating a known legal duty, and so their conduct would not satisfy the willfulness element of the offense. For criminal liability after the DMCA safe harbor, as in horseshoes, close may be good enough.

SECONDARY COPYRIGHT LIABILITY AND CRIMINAL LAW:

The heart of this case is whether and when an enterprise can be held criminally liable for the conduct of its users. (For example, both copyright infringement claims (Counts 4 and 5) identify aiding and abetting as a basis for the charge.)

Aiding and abetting is something like the civil liability inducement theory the U.S. Supreme Court created in the 2005 Grokster case. Experts opine that the indictment makes out a pretty good inducement case against Megaupload. But the first question from a defense perspective has to be “Can the Grokster theory of CIVIL liability even be the basis for CRIMINAL copyright claims?” This has never been decided by any Court.

However, the pending Second Circuit case of Puerto 80 Projects v. USA (“Rojadirecta“), raises the issue squarely. There, the plaintiff is challenging the ICE seizure of its Rojadirecta domain names based on an allegation of criminal copyright infringement. For background on the case, and on the ICE domain seizures, check out Techdirt’s coverage.

Rojadirecta’s lawyers at Durie Tangri have challenged the U.S. Government’s assertion that criminal liability arises from linking to infringing content. The lawyers argue that judge-made secondary infringement liability theories, including Grokster style inducement, cannot be the basis for a criminal copyright violation because the criminal copyright statute doesn’t mention secondary liability. Congress considered and rejected statutes that would have created such liability, in COICA and PROTECT IP. In sum, due process doesn’t allow incarceration under a civil legal theory that the Supreme Court dreamed up in 2005. The issues yet to be decided in Rojadirecta apply to the Megaupload case as well.

AGREEMENT + CIVIL VIOLATION = PRISON?: Count 2 is a conspiracy to commit copyright infringement claim, and references unknown parties as members of the conspiracy. Conspiracy entails an agreement to commit an offense and an overt act in furtherance of that agreement. The act in furtherance need not itself be illegal, but there must be an agreement to do an illegal act. The list of overt acts show that the object of the conspiracy was infringement by Mega users. If Defendants agreed with each other to induce others to infringe, and Rojadirecta’s lawyers are correct that inducement is not a crime, there’s a conspiracy only to violate a CIVIL law. If the idea is that Mega conspired with its users to infringe, those users may or may not have been criminally infringing copyright. They were located all over the world, and may or may not have acted willfully, i.e. intended to violate U.S. law. Again, the government would basically have alleged an agreement to violate a U.S. CIVIL law, including by many people who are not subject to U.S. rules.

Is it a federal crime to conspire to induce others to violate a U.S. civil law?

The answer to that is an obvious “no”. The conspiracy statute itself makes clear that the object of the conspiracy must be an offense or fraud against the United States, in other words, a federal crime. 18 U.S.C. 371. It is true that Oliver North and John Poindexter were prosecuted for conspiracy to violate Boland Amendment, which prohibited Defense Department spending on the Nicaraguan Contras, but was not itself a crime. And there is a 1979 case (U.S. v. Ruffin, 613 F.2d 408 (2nd cir. 1979), where the defendant was convicted of conspiracy when he convinced an unwitting person to divert federal funds to the defendant’s personal benefit. But both cases constituted fraud involving U.S.taxpayer dollars, which is also a basis for conspiracy liability. Civil violations simply are not.

For these reasons, prosecuting this case against Mega, especially if Defendants get good criminal lawyers who also understand copyright law, is going to be an uphill battle for the government.

A few other points. Some direct infringement convictions look easy, but COUNT 4 IS WEIRDLY INCOMPLETE: I agree with the copyright law experts interviewed by Ars Technica that the most damning allegations in the indictment are the claims of direct infringement, particularly for the prerelease movies. Interestingly, the indictment identifies four films that the defendants supposedly distributed before release: The Green Hornet, Thor, Bad Teacher, Twilight–Breaking Dawn Part 1. But Count 4 only charges one such act of prerelease infringement, the movie Taken. What about the other films? Why were those not also charged?

Finally, this case is extremely interesting from a JURISDICTIONAL standpoint. One of the very first issue to be litigated will be extradition to the United States. Does the United States have jurisdiction over anyone who uses a hosting provider in the Eastern District of Virginia? What about over any company that uses PayPal? That’s a very broad claim of power, and I expect it will be vigorously contested.

]]>http://www.granick.com/blog/?feed=rss2&p=7390New Year, New Jobhttp://www.granick.com/blog/?p=736
http://www.granick.com/blog/?p=736#commentsTue, 10 Jan 2012 06:42:10 +0000http://www.granick.com/blog/?p=736Happy new year, Friends. It is starting out to be a great 2012 for me. I’ve taken a position as General Counsel for Worldstar LLC and its flagship website worldstarhiphop.com (WSHH), voted top hip hop and urban culture website two years running by BET. In addition to the website, Worldstar operates a talent agency, video production company, dating site and is growing rapidly. They were a client of mine at ZwillGen PLLC, so I’m honored and thrilled to come on board full time.

Additionally, my new position allows me to continue work on the internet freedom and privacy issues so important to me: electronic surveillance, government privacy, computer security, coder’s rights and free speech .

So if you want to reach me, for WSHH matters or for any digital civil liberties issue, here’s my new contact information.

]]>http://www.granick.com/blog/?feed=rss2&p=7360Stingray Bites Man. Will the Fourth Amendment Bite Back? (Location Tracking)http://www.granick.com/blog/?p=732
http://www.granick.com/blog/?p=732#commentsThu, 20 Oct 2011 22:30:10 +0000http://www.granick.com/blog/?p=732On October 28, the Department of Justice will argue to a District Court Judge in Arizona that neither the public nor criminal defendants should learn about a special investigative tool it uses to track individuals’ location via their cellphones. According to the Wall Street Journal, law enforcement and the military are regularly using such devices, called “Stingrays”. In the Arizona case, United States v. Rigmaiden, investigators used the technology to assist them in locating the suspect. That defendant is now asking the court to order the government to turn over information about how stingray functions and how it was used in his arrest so that he can litigate whether use of the device violated his Fourth Amendment rights.

]]>http://www.granick.com/blog/?feed=rss2&p=7320Great Network in the Sky Giveth, Taketh Awayhttp://www.granick.com/blog/?p=729
http://www.granick.com/blog/?p=729#commentsWed, 07 Sep 2011 22:42:22 +0000http://www.granick.com/blog/?p=729Isn’t it great that when your car, or phone, or laptop gets lost or stolen, you can use modern technology to find your stuff and get it back? One might think only paranoid Luddites or the thieves themselves would oppose such an innovation. But the joy of a ubiquitous communications/tracking network is tempered by the threat to privacy — and potential liability — for enlisting SkyNet to peer into our cars, purses and bedrooms.

Part One: The Wiretap Act and Find My Computer

Last month, in Clements-Jeffrey v. Springfield, a quirky case involving sex and a stolen laptop, a U.S. District Court judge in Ohio ruled that a laptop-tracking company could be liable for intercepting sexually explicit communications in an effort to identify thieves who stole the computer one plaintiff was using to communicate with the other. …